Anderson, an eligible employee of Avon Products, an FMLA covered employer, requested a sick day for a diverticulitis episode. In response, Shao, his supervisor, indicated that Anderson would incur an attendance violation if he did not come to work only if he did not produce a doctor's note explaining his absence. Anderson elected not to take the leave. He was not assessed an attendance violation.
Anderson sued alleging that Avon interfered with his right to take FMLA leave. The Sixth Circuit disagreed. The court noted that Shao did not deny Anderson's request for leave. Rather, the logical implication of Shao's statement was that Anderson "would not incur a violation if he did produce a doctor's note." The FMLA permitted Avon to require Anderson to substantiate his request for serious health condition leave with a medical certification from a health care provider. The court observed:
Comment: Although unstated, the court applied a reasonable person standard in finding that that Shao's statement did not interfere with Anderson's FMLA rights. Although awkwardly phrased, Shao's statement, when deconstructed, did not threaten adverse action if Anderson took FMLA leave. The fact that Anderson believed otherwise was not controlling.
While ultimately victorious, the lawsuit undoubtedly cost Avon a bundle in time and treasure to defend. The situation may have been avoided had Avon providedShao with an approved form or packet for responding to employee requests for FMLA leave in a way that avoids costly ambiguity. Supervisors would be trained to simply hand over the FMLA packet. If the employee has questions they should be directed to a named HR professional. Given the complexity of the FMLA and the cost of litigation, vesting primary responsibility for handling FMLA requests with front line supervisors is fraught with expensive danger.
Anderson v. Avon Products, Inc., 2009 FED App. 0540N, 2009 U.S. App. LEXIS 17499 (6th Cir. Aug. 5, 2009).